SH FITRAT HUSAIN Vs. LIAQAT ALI

JUDGEMENT

(1.) This is a reference under Order 46, Rule 1, Civil P.C., by the learned Small Cause Court Judge, Sahaswan, of the following question: Whether on a transfer of sir rights in respect of a plot on which a grove stands, the right to the trans-possession of the trees is transferred to the transferee, or the trees also would be subject to the ex-proprietary tenancy rights?

(2.) The frame of this question is somewhat unfortunate. Section 6, Agra Tenancy Act, Act 3 of 1926, lays down that sir rights are not transferable except in two cases, neither of which arises in the reference. The question is also at fault in referring to "subject to the ex-proprietary rights" where the alternative really is "or the right to the possession of the trees remains with the transferor." The order of reference has set out the question more correctly at an earlier part as follows: The question, on which there is a dispute between the parties, then resolves itself into whether on the transfer of proprietary rights in sir land on which a grove stands, the right to the possession of the trees and their fruits remains with the transferor or goes to the transferee.

(3.) The particular case which has arisen is one where on 15 April 1929 defendant 1 and the predecessor of defendants 1 and 2 executed in favour of plaintiffs usufructuary mortgage deed of zamindari property, which included plot No. 373, a sir plot, area 1 bigha 5 biswas grove. The reference is silent as to whether the Collector fixed ex-proprietary rent on the sir land under Section 36, Land Revenue Act, 1901. Learned Counsel produced an agreement between the parties that the mortgagors were to pay Rs. 45 per annum to the mortgagees as rent for this grove, but this document is not yet on the record. The Court below should go into this matter, and presumably this agreement would settle the rights of the parties as to possession of the trees, for which apparently the rent was to be paid. The plaintiffs sue alleging that they are entitled to appropriate the fruits of the grove, and the defendants allege that as ex-proprietary tenants, they are entitled to the fruits of the trees. The learned Counsel also produces the usufructuary mortgage deed of 15 April 1929 and an endorsement on it shows that it was produced before the lower Court. It contains details of the zamindari mortgaged and refers to the number in question as follows : "ek kita bagh tadadi 1 bigha 5 biswas mi darakhtan c arazi zer darakhtan muafi minzabta number 373."